In Re Kansas B., et al.

The Tennessee Department of Children’s Services (“DCS”) filed a dependency and neglect petition with respect to four children, two of whom are the eldest children of the mother and her first husband and two of whom are the youngest children of the mother and her current husband. DCS filed the petition upon receiving a referral that the mother’s sevenyear- old daughter from her first marriage had been sexually abused by her stepfather, the mother’s current husband. The stepfather sought to call the seven-year-old child as a witness during the trial, but the trial court denied his request upon balancing the probative value of the child’s testimony with the potential emotional and psychological harm the child could suffer from testifying. The mother and stepfather have appealed. Upon thorough review, we conclude that the trial court erred in utilizing this balancing test and precluding the stepfather from calling the child as a witness. We therefore vacate the trial court’s final judgment adjudicating the children dependent and neglected and remand the case so that the trial court may hear the child’s testimony, provided that the child is competent to testify and that the court does not exclude the testimony pursuant to Tennessee Rule of Evidence 403. If the child is allowed to testify, the trial court should consider utilizing the accommodations set forth in Tennessee Rule of Juvenile Practice and Procedure 306 to ameliorate any potential harm that testifying may cause the child.